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CAROLIS v. COMMISSIONER OF STAMPS
NLR40V111
1938 Present:
Koch and Soertsz JJ.
CAROLIS v. COMMISSIONER OF STAMPS
S.C. 31/1938 Special.
Probate duty-Estate of person
dying in 1908-Probate issued in 1937-Effect of repealing Ordinances Nos. 8 and
10 of 1919-Estate Duty Ordinance, No. 8 of 1919, s. 34.
Where the last will of a person, who died in 1908, was admitted to probate in
July, 1937, and the executor, when called upon to pay probate duty, contended
that the duty had been repealed by the Estate Duty Ordinance; No. 8 of 1919, and
the Stamp Ordinance, No. 10 of 1919,-
Held, that the effect of section 34 of the Estate Duty Ordinance, No. 8
of 1919, which repealed the duty was to incorporate into the provisions of that
Ordinance, sections 68 to 73 of the Stamp Ordinance, No. 22 of 1909, in so far
as regards the duty on the estates of persons dying before the commencement of
the Estate Duty Ordinance of 1919, and that the estate was liable for probate
duty.
Held, further, probate must be stamped in accordance with the law in
force at the time it is. signed by the Judge.
THIS
was an appeal from an order of the Commissioner of Stamps under section 32 of
the Stamp Ordinance.
C. Seneviratne, for appellant.
E. A. L. Wijeyewardene, K. C., S.-G. (with him Pulle, C. C.), for
Crown, respondent.
April 25, 1938. KOCH J. -
Although the deceased, the widow of one W. D. Carolis, died in the year 1908, no
steps in respect to probate of her will were taken till July, 1936. On July 13,
1937, the Court, however, issued probate in testamentary
case No. 7,443 in which her
estate, was being administered, and a duty of Rs. 2,937 was levied on and paid
for by her executor. On July 21, 193n, an application was made by the executor
to the Commissioner of Stamps for a ruling as to whether the probate duty was
rightly levied, the executor taking up the position that no such duty was
leviable and that the sum should be refunded to him. By his letter of February
10, 1938, the-Commissioner of Stamps, acting under section 30 of the Stamp
Ordinance, No. 22 of 1909, informed the executor that probate had been correctly
stamped with a duty of Rs. 2,937. The executor being dissatisfied with the
determination of the Commissioner has duly appealed to this Court under section
32.
It was contended on behalf of the appellant that probate was an instrument, that
it was executed when signed, by the Judge, and that it has to be stamped in
accordance with the law in force at the date of its: execution. This was
conceded by the learned Solicitor-General who, nevertheless, took up the
position that at such date, namely, on July 13, 1937, probate duty was leviable
and that that duty amounted to the sum of Rs. 2,937.
The appellant, on the other hand, maintained that the law in regard to-payment
of probate duty had been repealed by Ordinance No. 19 of 1927, that since that
Ordinance came into operation no probate duty was chargeable, and that wills had
since then been admitted to probate free of duty. He was not quite correct here,
for the estates of persons which escaped duty were the estates of those who died
after October 1, 1935.
In taking up this position, the appellant's Counsel has also failed to take into
account the effect of Ordinance No. 10 of 1919, which substituted a new schedule
B for schedule B of the principal Ordinance No. 22 of 1909, (the Stamp
Ordinance), as amended by Ordinance No. 16 of 1917. This new schedule B, in Part
III., does not make provision for probate duty as was previously made in the
principal Ordinance and its amendment, so that the position after Ordinance No.
10 of 1919, was precisely the same as it became after Ordinance No. 19 of 1927
was enacted. But, however this may be, the fallacy underlying the argument of
the appellant's Counsel is his ignorance of the effect of section 34 of the
Estate Duty Ordinance, No. 8 of 1919. This section runs thus :
"Sections 68 to 73 (bo
